Citation Nr: 1021962
Decision Date: 06/14/10 Archive Date: 06/24/10
DOCKET NO. 09-44 398 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUE
Entitlement to additional compensation for the Veteran based
on the need for aid and attendance for the Veteran's spouse.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Bridgid D. Cleary, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1951 to August
1954.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from a March 2009 rating decision of the
Hartford, Connecticut, Department of Veterans Affairs (VA)
Regional Office (RO).
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. The Veteran's spouse died on January [redacted], 2009.
2. The Veteran filed this claim on January 21, 2009.
CONCLUSION OF LAW
The criteria for an award of special monthly compensation
based upon the need for the regular aid and attendance of the
Veteran's spouse have not been met. 38 U.S.C.A. § 1115 (West
2002); 38 C.F.R. § 3.351(a) (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
Under the Veterans Claims Assistance Act of 2000 (VCAA), upon
receipt of a complete or substantially complete application
for benefits, VA is required to notify a claimant of the
information and evidence necessary to substantiate the claim.
38 U.S.C.A. § 5103(a)(1); 38 C.F.R. § 3.159(b). Under the
VCAA, VA also has a duty to assist claimants in obtaining
evidence needed to substantiate a claim, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. §
3.159(c).
In this case, the Board finds that no further action is
necessary pursuant to the VCAA prior to consideration of the
issues addressed in this decision. As set forth in more
detail below, the facts in this case are not in dispute and
the Veteran's appeal must be dismissed as a matter of law.
Thus, the Board finds that any deficiency in VA's VCAA notice
or development action is harmless error. Pratt v. Nicholson,
20 Vet. App. 252 (2006); Mason v. Principi, 16 Vet. App. 129,
132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001)
(holding that the VCAA is not applicable to matters in which
the law, and not the evidence, is dispositive). Neither the
veteran nor his representative has argued otherwise.
Factual Background and Analysis
On January 21, 2009, the Veteran filed this claim for
entitlement to SMC based on the need for aid and attendance
of his wife. With that claim, he submitted his wife's death
certificate, showing that she passed away on January [redacted], 2009.
SMC based on the need for aid and attendance is available
when the Veteran's spouse is helpless or so nearly helpless
as to require the regular aid and attendance of another
person. 38 C.F.R. §§ 3.351(a), (b), (c). While this
description may have applied to the Veteran's wife in the
three months leading up to her death, as the Veteran and his
wife's physician claim, at the time of his claim several days
after her death, the need for regular aid and attendance had
ended. Furthermore, at the time of her death, there was no
claim pending for SMC based on the need for aid and
attendance or the Veteran's wife. Cf. 38 U.S.C.A. § 5121(a)
(allowing specified dependents to receive accrued benefits
for VA benefits to which the deceased individual was entitled
to at the time of his or her death). Thus the Veteran has
failed to state a legal basis upon which relief can be
granted. As the law, and not the evidence, is dispositive in
this case, the claim must be denied as a matter of law.
Sabonis v. Brown, 6 Vet.App. 426 (1994).
ORDER
Entitlement to additional compensation for the Veteran based
on the need for aid and attendance for the Veteran's spouse
is denied.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs